City of Memphis v. Dush

BURNETT, Justice

(dissenting).

I am forced to dissent from the majority opinion. I feel that the facts of this case present a jury question as was determined by the trial court and the Court of Appeals. There is a disputed question of fact here involved wherein reasonable men disagree and under such circumstances the question is one for the jury under proper instructions from the court.

The majority opinion is apparently bottomed on the ease of City of Memphis v. McCrady, 174 Tenn. 162 , 124 S. W. (2d) 248 . This case, the McCrady case, only decides that in these sidewalk cases,

“where the evidence is conflicting, or the facts such as to authorise different inferences as to whether the defect is a dangerous obstruction calculated to cause *660 injury, the case must be submitted to the jury, but, where the defect or obstruction is such that reasonable men would not differ in the conclusion-that the obstruction or defect was not dangerous to travel in the ordinary modes by persons exercising due care, a verdict should be directed.” 174 Term, at page 166, 124 S. W. (2d) at page 249 . (Emphasis mine.)

It is true that in this case this Court affirmed the Court of Appeals in holding that a verdict should have been directed, that is, under the facts and circumstances as shown in the case. But the point of the McCrady case is that the facts in that particular case authorize the direction of the verdict. We in this State have no statute specifying what shall be negligence on the part of the City in the control of its sidewalks. We must apply the common law and where the evidence is conflicting the question must be submitted to a jury.

In the case now before us there is a conflict in the evidence as to whether or not the acts of the City in allowing the sidewalk to become in the condition that it was in was negligence; whether or not these parties were barred because of their proximate contributory negligence and all of those things. It is and has always been the law in this State that:

“upon amotion for peremptory instruction, the entire evidence must be looked to, and that it must be given the construction most favorable to the adversary party, and all reasonable inferences allowed in his favor, and that, if there is then seen to be a dispute as to any material determinative evidence, or any doubt as to the conclusion to be drawn from the whole evidence, the motion should be denied. ’ ’ Johnston v. Cincinnati, N. O. & T. P. R. Co., 146 Tenn. 135, 149 , 240 S. W. 429 , 433.

*661 The liability of the City for injuries from defects or obstructions in the sidewalks, as here, is for negligence, and for negligence only. Brown v. City of Chattanooga, 180 Tenn. 284 , 174 S. W. (2d) 466 ; City of Memphis v. McGrady, snpra, and others. Of course the City is not an insurer of these people walking along the sidewalk nor is it required to keep this sidewalk absolutely safe for these pedestrians but it is required to exercise ordinary or reasonable care in maintaining these sidewalks in a reasonably safe condition for the travel of these ladies as well as others who are using the sidewalks in a proper manner with due care. See authorities cited, supra. The fact that other sidewalks were permitted to remain in a similar condition as the one on which these ladies fell and sustained their injuries is no defense to the City’s liability.

We have recognized in all of our authorities that there is no hard and fast rule as to the depth or character or extent of the defect in the sidewalk to impose liability o.n the City but we must take each case as we find it and then determine whether or not there is sufficient or insufficient proof to go to the jury as to whether or not the City has maintained the sidewalks in a reasonably safe condition for ordinary purposes of those using the sidewalks under the particular circumstances as they exist. I think that the test to be applied in determining whether or not Memphis has performed its duty with respect to the care of this sidewalk is whether a reasonably cautious person, having the duty to preserve and repair the walks, would consider a particular defect as one which might cause pedestrians to be injured. Clearly under the facts of this case it is for the jury to determine along with all the evidence showing knowledge or lack of knowledge on the part of these women at the time what care they were *662 exercising, etc. It is clear that different men can disagree on these things as is evidenced by what has been done in this particular case — the two lower courts holding that it was a matter for the jury.

These ladies in using this sidewalk had the right to use it in the ordinary manner, and the right to assume that the sidewalk was in a reasonably or ordinary safe condition, but they are required at the same time to exercise ordinary care in view of the surrounding facts and circumstances. These things under the facts here adduced make a jury question.

In Volume 19, of the Third Edition of McQuillin on Municipal Corporations, at Sec. -54.80 and on page 270 will be found a list of cases in which persons fell by reason of defects in sidewalks caused by the roots of the trees growing under the blocks of the sidewalks and raising them, etc. I have read several of these cases. Some of them go off on the statute of the particular State. There is one from Illinois, Fromme v. City of Girard, 295 Ill. App. 144 , 14 N. E. (2d) 690, 691, which I think is very much in point here. The Court said:

“It appears from the greater weight of the evidence that on April 19, 1933, at about 7:30 p. m., the plaintiff, her sister, and a property owner who was taking them to see some property they contemplated renting, were walking along a public concrete sidewalk in an easterly direction in said city when plaintiff stumbled over a block or section of the concrete walk which was elevated from two and one-half to four inches above the level of the adjoining section, causing plaintiff to fall o.n the sidewalk and sustain a fractured patella, injuries to her left knee, a ‘ C'olles fracture ’ of the right arm, and a wrist injury; that she received hospital treatment at Carlinville and *663 Springfield, and suffered serious disabilities, some of which were of a permanent nature. The sidewalk was raised by growing- roots of trees which were placed between the sidewalk in question and the curb line in the city street. It was shown that officials of the city, including the street superintendent, knew of and had inspected this defect and the raised place in the sidewalk in question several months prior to the date of injury, but that nothing was done to change the conditions. It further appears that at and near the point or place of injury, which was located about a block from the public square and a half block from the Interurban street car station, the street was poorly lighted, and that plaintiff was not familiar with the surroundings on the street where the injury occurred. A city is required to exercise reasonable care to keep its sidewalks in a reasonably safe condition for the amount and kind of travel which may fairly be expected upon them. * * *

‘ ‘ The questions of due care and negligence proximately resulting in the injury complained of were clearly questions of fact which were passed upon by the presiding and two associate judges, sitting en banc, to whom the case had been submitted by waiver of a jury and agreement of the parties, and this court is of the opinion that the judgment of the trial court was in accord with the greater weight of the evidence. The evidence showing the nature and extent of the injuries sustained and expenses incurred by plaintiff fully justified the amount of the judgment entered, and the same was in no wise excessive. ’ ’

What is being held by the majority opinion is one of two things — either that these ladies are barred from recovery because as a matter of law their contributory *664 negligence bars them or that in a 2% to 3 inch break there is ,no negligence on the part of the City. In my judgment either is a misapplication of the law.

For the reasons herein expressed I am clearly of the opinion that the questions here presented were questions for the jury and that we should not direct a verdict under the facts of this case for the City. It is for this reason that I most respectfully dissent from the majority opinion.